from the spooked dept

We just wrote about the hearing in the 7th Circuit appeals court concerning accused terrorist Adel Daoud, highlighting how Judge Richard Posner had turned it into a secret hearing, kicking everyone but DOJ officials out of the courtroom at one point. One of the reporters in the room (prior to being kicked out), Michael Tarm, had tweeted that everyone should look for the recording of the oral arguments on Thursday "if only to hear Posner" yell: "Look! You answer my questions, not your questions!"

Except, if you looked, you would never find that recording. Because it doesn't exist. The court clerk, who's been doing this for 25 years, says his staffers "goofed" and failed to record the hearing at all, in large part because they were so spooked by FBI agents crawling all over the court room for hidden microphones.

Though hearings before the 7th U.S. Circuit Court of Appeals are routinely recorded and published on the court's website, Court Clerk Gino Agnello admitted Thursday his staff "sort of freaked out" before Wednesday's hearing in the case of alleged wannabe South Loop bar bomber Adel Daoud.

Court staff who operate the audio recorder saw FBI agents sweep the courtroom for bugs and "misinterpreted" that to mean they shouldn't record the hearing, Agnello said.

And, of course, because these hearings are normally recorded, there was no one there to do standard stenography. Instead, the transcript is often written up after the fact... based on the recording. Ooops. Except, you know, not "oops." This is a pretty big screw-up, considering the importance of our supposedly "open" judicial system. Daoud's lawyer, Thomas Durkin, properly points out that "this is what happens when people get scared," and shows how difficult it is to have a fair trial when so much is "driven by fear-mongering."

from the leaving-citizens-to-fight-'reasonable'-arrests-for-obstruction dept

In what is being touted as a victory for First Amendment rights, the First Circuit Court of Appeals has upheld the right of people to record police officers in public. This is nothing more than a reaffirmation of a right citizens already possessed, something that can hardly be considered a victory.

The problem is that, despite this being made clear on multiple occasions, people are still being arrested for recording police officers. Sometimes it's a bad (and outdated) wiretapping law that gets abused. Sometimes it's other, unrelated laws that are stretched to fit the circumstances, which means those recording officers are hit with charges ranging from interfering with police investigations to criminal mischief, depending on how the interaction goes.

But this ruling has received lots of press, much of which centers on the positive aspects of the ruling -- which, again, must be pointed out only affirms a previously existing right. So, while it's nice to have a higher-level court confirm First Amendment protections, the fact is that this decision was only made necessary by law enforcement's arguments to the contrary.

[T]he opinion, after reaffirming what was already the law, put a lot more effort into the caveat:

"This is not to say, however, that an individual’s exercise of the right to film a traffic stop cannot be limited."

Boom. There it is, the grand right in a few black letters, and then the lengthy explanation detailing how to circumvent and eliminate it. Thanks for the roadmap, bro.

"Indeed, Glik [v. Cunniffe] remarked that 'a traffic stop is worlds apart from an arrest on the Boston Common in the circumstances alleged.' That observation reflected the Supreme Court’s acknowledgment in Fourth Amendment cases that traffic stops may be ‘especially fraught with danger to police officers’ and thus justify more invasive police action than would be permitted in other settings. Reasonable restrictions on the exercise of the right to film may be imposed when the circumstances justify them."

The word “reasonable” is perhaps the most dreaded word in law. First, it is meaningless, left to the sensibilities of judges to decide and a hole big enough to drive a Mack truck through. Second, whenever we see it, we know it’s the opening through which bad things come. Bad, bad things.

"Reasonable" is one of the government's favorite words, one that helps carve out privacy protections and pare back the First Amendment right to record cops. "Reasonable" is the amount of effort claimed to be made by an FOIA department as it turns down your public records request. "Reasonable" is the key word propelling the Terry stop, which in some cities has devolved into stop-and-frisk. "Reasonable" is supposedly an objective standard, but one that is constantly defined subjectively by everyone from the beat cop to the judge presiding over the case.

So, the word "reasonable" jumps in with the First Amendment right so recently confirmed and starts punching holes in the protection.

[A] police order that is specifically directed at the First Amendment right to film police performing their duties in public may be constitutionally imposed only if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties.

In plain English, this is what that means.

[Y]ou have the constitutional First Amendment right to record police until they tell you to stop, because reasons, at which point you don’t.

Now, we're back where we started, even with a recent district court decision. Citizens have a right that doesn't feel like a right because it can so easily be revoked by an officer reaching a "reasonable conclusion." This means recordings will still be shut down and those operating cameras arrested. The right, as it exists, will most likely be subject to our country's favorite remedy: the court system, a long, expensive process that usually begins with an arrest.

That's not how rights are supposed to work. The exceptions should be few and far between, rather than an incredibly significant part of the whole.

There was no news release or news conference to announce the radical shift. But a DOJ memorandum obtained by The Arizona Republic spells out the changes that will begin July 11.

"This policy establishes a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the United States Marshals Service (USMS) will electronically record statements made by individuals in their custody," says the memo from James M. Cole, deputy attorney general, to all federal prosecutors and criminal chiefs.

"This policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply,'' such as in the questioning of witnesses.

As you can see, there's still a loophole for these agencies to exploit. They'll be "encouraged" to record non-custodial questioning, but there's no direct stipulation requiring it. On the plus side, this is a huge improvement over the previous method: handwritten notes taken by agents on a "302 form." Not only were the notes highly subjective, but they also tended to be destroyed as soon as possible. Others weren't even transcriptions of interviews, but were written after the fact using nothing more than an agent's power of recollection. This has obviously led to abuse, as well as to plain old carelessness.

The failure to maintain electronic records of interrogations also created gaps in FBI intelligence gathering, especially involving terrorism cases. Instead of maintaining an accurate and largely indisputable record, agents on the witness stand for decades have relied on their memories, interpretations and handwritten notes transcribed into a form known as the 302.

Critics have said that flawed system results in botched investigations, lost evidence, unprofessional conduct and false convictions. They noted that the historic DOJ practice was problematic in trials of suspects like terrorist Osama bin Laden, TV star Martha Stewart and Oklahoma City bombing defendant Terry Nichols, along with thousands of defendants with no public exposure.

Of course, those who prefer the old, unaccountable way are still raising objections, despite the fact that recording custodial interviews has been common practice in less-cutting edge local law enforcement agencies for decades.

Nancy Savage, executive director at the Society of Former Special Agents of the FBI, said there's probably no unilateral view from field agents. Although tape recorders sometimes intimidate suspects, she added, the change was probably inevitable because juries have come to expect audio and video evidence.

The FBI's other rationale for pen-and-paper-only has been that jurors might be persuaded to acquit someone if they were made aware of tactics used by agents to secure a confession.

In 2006, the New York Times uncovered another explanation for the DOJ policy, spelled out in an internal FBI memorandum. Basically, it argued that jurors might be offended, possibly to the point of acquitting defendants, if they observed the deceit and psychological trickery legally employed by agents to obtain information and confessions.

This would seem to be a problem the FBI needs to solve, rather than just expect the public to go along with its your-word-against-ours policy. The fact that the DOJ's several agencies need to be pushed into providing something more verifiable than an agent's slanted recollection of an interview is a sad statement on the mentality of those employed by these agencies. For them, it's been a long, easy ride, where any abuse under the old system could be mitigated by the agencies' "fighting the good fight" excuse. After all, they're chasing down drug dealers and terrorists. Who are we to question their methods?

Well, we're the public and we've been expecting accountability from our government agencies for a long time. And they've been in no hurry to provide it. By "boldly" pushing the ATF, DEA and FBI into the last half of the 20th century, Deputy AG James Cole is finally nudging his charges in the right direction. To be sure, recording devices can be tampered with, misplaced or simply never activated, but it's still a huge step forward from the agencies' long-held preference for pen, paper and subjective portrayals.

from the and-to-think,-this-all-could-have-been-prevented dept

South Fayette School in Pennsylvania, along with a complicit criminal justice system, recently made headlines with its groundbreaking anti-bullying program, which apparently deters bullying by punishing bullied students.

Here's a short recap:

A bullied student used an iPad to make an audio recording of other students abusing him. He brought this to school administration who a) called in a police officer (after being advised by its legal team that this might be a violation of the state's wiretapping law) and b) deleted the recording.

The police officer, unable to actually bring a felony charge against the minor, settled for disorderly conduct. This charge brought him before a judge, who first stated her firm belief in the school's inability to do wrong before finding him guilty.

Throughout the entire debacle, not a single person involved even considered the possibility that the student had committed no crime or the fact that he had followed all of the school's prescribed steps for reporting bullying incidents. Instead, the desire to punish someone was obliged every step of the way.

Stanfield (the student) had announced that he and his attorney would file an appeal to that ruling but his fight may already be coming to an end. Today, Benswann.com has been told by Stanfield’s attorney that the District Attorney will allow the appeal to go forward but will no longer pursue this case.

More specifically, both the wiretapping charge (which was apparently still brought despite the involved officer's statement otherwise) and the disorderly conduct charge (which the judge found the student guilty of) were dropped.

A wiretapping charge against a South Fayette High School student who recorded two classmates bullying him has been dropped by the Allegheny County District Attorney's Office.

Mike Manko, a spokesman for District Attorney Stephen Zappala, said Judge Robert Gallo signed an order Thursday to withdraw the citation against 15-year-old Christian Stanfield.

"No one in our office who is authorized to give advice on wiretap issues or school conduct issues was ever contacted in this matter. We have made multiple attempts to contact the officer who wrote the citation and (the) results have been unsuccessful," Manko said in a written statement. "We do not believe this behavior rises to the level of a citation."

Odd that a police officer wouldn't talk to a district attorney. Unless, of course, a little bit of hindsight made him realize his every move fell between vindictive and buffoonish. Lt. Murka, who apparently considered both wiretapping and disorderly conduct to be appropriate "remedies" for a bullied student recording his tormentors, seems to have recused himself from the public eye. Manko, speaking for the DA, hits the heart of the issue -- one simple sentence that any of those involved could have deployed to call an end to this ridiculous situation before it ended up in front of a judge: "We do not believe this behavior rises to the level of a citation."

The South Fayette Township School District wishes to address recent reports in the local and national media concerning a student of the South Fayette Township School District. It is to be noted that certain information being disseminated by the media is inaccurate and/or incomplete.

Rather than clear up what exactly was "inaccurate and/or incomplete" about the reporting, it instead has chosen to hide behind "confidentiality."

The School District is legally precluded from commenting specifically in regard to these reports as the issue involves a confidential student matter.

Considering the story has been all over the news, it seems a bit weak to claim the matter is still "confidential." It would seem it could comment on any of the specifics already in the public domain. The story has gone nationwide, so it's disingenuous to pretend it's still a "confidential" matter.

While it's nice that the DA has dropped the charges and allowed the student to proceed through school without criminal charges hanging over his head, one wonders if this same outcome would have forthcoming without the attendant public outcry. Any adult can start acting like one with enough public shaming. But the application of a little common sense would have averted this incident completely.

A bit more troubling is one of the suggestions that escaped the lips of a local politician who showed up to the teen's "not a criminal" celebration.

State lawmaker Jesse White joined the rally, telling Stanfield he wants to name a law after him. He said it would close the loophole in the wiretapping law and allow victims of bullying to record it as proof for police and school officials.

His opportunistic heart's in the right place, but naming laws after people often indicates the new law is a bad one. This isn't an issue where a new law will fix things. This is an issue where no one in this chain of events showing the courage (and common sense) to stand up and ask why they were punishing a bullied kid for recording bullies.

Los Angeles police officers tampered with voice recording equipment in dozens of patrol cars in an effort to avoid being monitored while on duty, according to records and interviews.

An inspection by Los Angeles Police Department investigators found about half of the estimated 80 cars in one South L.A. patrol division were missing antennas, which help capture what officers say in the field. The antennas in at least 10 more cars in nearby divisions had also been removed.

These antennas, linked to both in-car camera systems and officers' body mics, helped increase the recording range. Removing the antennas didn't completely prevent recordings, but it did make it harder to pick up officers' voices once they entered buildings or ventured further away from the receivers located in the vehicles. According to the manufacturer, the antenna boosts the effective range of the body-worn transmitters by roughly a third.

When you're watching yourself (something prompted by a decade-long DOJ investigation of the LAPD), you have this luxury. No cop's going to turn in another cop who removes an antenna or otherwise tampers with the department-imposed oversight measures. A whole lot of time elapsed between when the tampering was discovered and when it was finally brought to the attention of those charged with monitoring the monitoring.

Members of the Police Commission, which oversees the department, were not briefed about the problem until months later. In interviews with The Times, some commissioners said they were alarmed by the officers' attempts to conceal what occurred in the field, as well as the failure of department officials to come forward when the problem first came to light.

"On an issue like this, we need to be brought in right away," commission President Steve Soboroff said. "This equipment is for the protection of the public and of the officers. To have people who don't like the rules to take it upon themselves to do something like this is very troubling."

This is very troubling, and while it's nice of the Police Commission to admit that fact, this tampering points to the officers' underlying resentment of nearly any method of monitoring or control. Many police officers don't like being recorded in public by citizens, so it stands to reason they don't much care for being recorded by the department itself. Hence, antennas go missing.

Those who are supposed to be making sure the police officers aren't becoming a law unto themselves seem to have little interest in attacking the mindset that leads to this sort of behavior.

"We took the situation very seriously. But because the chances of determining who was responsible was so low we elected to … move on," [LAPD Commander Andrew] Smith said, adding that it cost the department about $1,500 to replace all the antennas.

Too hard, won't try. That's the standard being applied to the LAPD. Instead of making an effort, band aids are being applied. Officers are now supposed to sign off that the antennas are in place at the beginning and end of their shift. This leaves a gaping hole in coverage (otherwise known as the shift itself) should officers decide they'd rather not be recorded. This hole has received its own band aid.

To guard against officers removing the antennas during their shifts, Tingirides said he requires patrol supervisors to make unannounced checks on cars.

Great, but considering there are many more officers than supervisors, and considering the fact that it took months before the missing antennas were brought to the attention of the Police Commission, who really believes this is going to stop officers from disabling antennas during work hours?

Oh, Commander Smith believes.

Since the new protocols went into place, only one antenna has been found missing, Smith said.

Well, that's the sort of result you can expect from self-reporting. Sure, a few cops may get a verbal handslap from a supervisor if they happen to come across a missing antenna, but it's a safe bet these supervisors aren't any happier about their men and women being recorded while on duty. Because if they did care, it never would have gotten to the point where nearly half of the antennas in a single division went missing.

With these cops being charged with keeping department-issued antennas present and accounted for, some have opted to go a different route to avoid being recorded.

Last month, the department conducted a follow-up audit and found that dozens of the transmitters worn by officers in Southeast Division were missing or damaged.

This time there's actually an investigation being opened, months after the original antenna abuse was uncovered by an internal audit (but hidden from the Police Commission). Judging from what's happened previously, there's very little reason to believe this will lead to the ouster of bad cops who don't like accountability. A few scapegoats may be offered up to calm both the public and department oversight, but if a ten-year investigation by the DOJ failed to bring about the sort of systemic change needed, it's highly unlikely an internal investigation will result in anything better.

from the a-mile-in-their-shoes dept

It's not terribly often that two regular themes we discuss at Techdirt come together in an almost perfect way. Yet that's exactly what's happened recently with a story that combines the value of allowing citizens to record public servants, particularly law enforcement officers, and the complete travesty known as stop and frisk. While that program is perhaps most infamous in New York, the basis for it is a court case, Terry v. Ohio, and that has been the groundwork for similar law enforcement policies throughout the country. Included in that is the city of Philadelphia, where we are able to see and hear firsthand a stop by two officers that all began when someone said hello to a stranger. Here's the entire video.

In case you can't view or would just like highlights, two men were stopped by police, according to the officers, because they said hello to a stranger and people just don't do that. So now we're outlawing being polite? Outstanding. It gets worse from there.

"I didn't accuse you of anything, can you hear? I said we could have got a call that somebody wearing the clothes that you're wearing just robbed someone, that's why we stopped you, so is that wrong of us?"

Well, gee, officer, in that completely hypothetical that you aren't confirming actually happened, that would not be wrong. But that isn't what was said initially. Instead, the stop occurred because of so-called suspicious activity that consisted of someone saying hello to another person. A stop due to a BOLO (be on the lookout) probably wouldn't have started with questioning suspects about saying hello.

"You're under investigation right now"

"Investigation of what? I was walking."

"That's not what I saw"

"I was walking."

"You're gonna be in violation if you keep running your mouth when I split your wig open."

I'm pretty sure we have a right to remain silent, not a requirement to under penalty of a split wig, whatever the hell that is. Further, as the video continues with threats for taking the men in for "running" their mouth illustrates wonderfully how far outside the bounds of serving and protecting these two esteemed officers went.

If you can stomach the video all the way through, you end up hearing the officers admit these two gentlemen did nothing wrong and would be let go, offered up via an extremely patronizing admission that they're "good guys." Without the right to record, not only would the abhorrent actions of the officers be subject to review, but those more privileged in life like myself might not understand that complete humiliation and unfairness involved in randomly stopping people without any reasonable suspicion wrong-doing. Stop and frisk and its cousin programs need to go the way of the dodo now.

from the those-enforcing-the-law-are-the-best-at-twisting-the-law dept

It's 2013, and despite oft-abused wiretapping laws being found unconstitutional when applied to recording police and new policies being issued to deter law enforcement officers from persecuting/prosecuting camera-wielding citizens, further incidents occur daily showing many PDs just aren't willing to cede this battle yet.

A Pennsylvania cop responding to a report of an accident refused to talk to the citizen unless his friend turned off the camera.

The citizen insisted on his friend recording, so Lancaster police officer Philip Bernot walked back to his car and drove off, refusing to take the report.

The citizen said he called the desk sergeant to complain, but was told it is a departmental policy not to be recorded.

Is it actually against departmental policy for Lancaster police officers to be recorded while performing their public duties (in public)? Well, that all depends on how you translate Pennsylvania's wiretap act, which aligns closely with the (formerly) onerous statute in place in Illinois. According to this 2007 Lancaster PD policy manual update, Pennsylvania citizens have the right to record video but not audio, unless both parties consent.

It starts out promisingly.

It is the policy of the Manheim Township Police Department to recognize the legal standing of members of the public to make video/audio recordings of police officers and civilian employees who are carrying out their official police duties in an area open to the public, and by citizens who have a legal right to be in an area where police are operating, such as a person’s home or business. However, this right does not prevent officers from taking measures to ensure that such activity and recording does not interfere or impeded with the officer’s law enforcement and public safety purpose.

The right to record audio and video seems to be guaranteed, provided there's no interference of police business (a huge gray area), and would seem to cover the contentious recording that caused an officer to walk off the job, as it were. But later in the same statement, this guarantee is undercut by a reference to Pennsylvania's wiretap act, providing every Lancaster police officer with a very convenient out.

The courts have made a distinction between simply videotaping an officer and videotaping with audio. When a person is out in public, he or she is voluntarily presenting their visage to the public and therefore can have no expectation that someone may photograph that person’s actions. However, when a person engages in discourse with another, as provided in the Wiretapping and Electronic Surveillance Control Act, 18 PA C.S.A. 5701, et seq. (“Pennsylvania Wiretap Act”), that person is entitled to expect that the discourse will remain private and not be shared with others through a recording device unless specifically consented to by the person speaking.

In order to ensure the state's (outdated) wiretap act isn't violated, those involved must jump through the following hoops.

If the officer would normally have an expectation of privacy and the officer observes the person being addressed audio taping or videotaping with audio, the officer may inform such person that he or she does not consent to the audio portion of the taping and request that the audio be shut off.

Following up on a reported accident on a public street would seemingly eliminate any "expectation of privacy," even for audio. Officer Philip Bernot felt otherwise, and chose to read the policy as being heavily reliant on this phrase in the preceding paragraph:

However, when a person engages in discourse with another… that person is entitled to expect that the discourse will remain private and not be shared with others through a recording device unless specifically consented to…

These two parts of the policy are at odds with each other and, indeed, with the opening paragraph that states the department recognizes the public's right to record video and audio of public servants performing their duties in public -- all of which Officer Bernot was doing, right up until he decided he wouldn't.

Pennsylvania's wiretap law provides plenty of exceptions for law enforcement and certain citizens to record audio with only the "consent" of the recorder (telemarketers, people discussing work with contractors) but it provides nothing specific regarding the general public recording public citizens. On the bright side, the wiretap law is set to expire at the end of this year (it was last amended in 2002 -- problematic enough given the exponential increase in citizens who carry cameras everywhere they carry their phones). Unfortunately, it looks as though renewing it completely intact is an option ("...unless extended by statute").

But is the Lancaster PD's contradictory reading of the wiretap statute accurate? Does it actually mean the public has no right to record audio of police officers without their consent, while completely free to record video and take photos? The Reporter's Committee for Freedom of the Press has a rundown on every state's applicable recording statutes and it comes to this conclusion regarding Pennsylvania's.

It is unlawful to record an “oral communication,” which is defined as “any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation” without first obtaining the consent of all parties engaged in the conversation. 18 Pa. Cons. Stat. Ann. § 5702. Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.

If a journalist is allowed to record "oral communications" in public without consent, it stands to reason citizens should be allowed to do the same. Lancaster PD may be deterring recordings by providing a confusing mess of a policy, but its interpretation of the wiretap law is flawed. The PD may have its own departmental policy, but it's superseded by state law governing recordings.

The constitutionality of this law won't be stress tested until there are multiple incidences of abuse, unfortunately. In Illinois, it took several high-profile cases of police and prosecutorial abuse before it reached the critical level needed to prompt a ruling from the Supreme Court. A single case, properly routed, could have the same effect, but there's an equal likelihood the courts would view it as a departmental anomaly rather than a flaw with the underlying law. On the other hand, Illinois' nearly-identical wiretap law has been struck down, meaning there's some sort of comparative ruling, even if there's not actual precedence.

The Lancaster PD is misusing the wiretap statute, one that the original legislators never meant to be utilized as a shield against public accountability. Officer Bernot's refusal to perform his duty, whether "justified" by a bad statute or not, was completely immature.

These estimates show only $27M in capital cost, and $2M in electricity and take less than 5,000 square feet of space to store and process all US phonecalls made in a year. The NSA seems to be spending $1.7 billion on a 100k square foot datacenter that could easily handle this and much much more. Therefore, money and technology would not hold back such a project -- it would be held back if someone did not have the opportunity or will.

Kahle has made the calculation available as a shared document (on Google, appropriately enough), so you can inspect his assumptions there and play around with the numbers. It's also worth reading through the comments to his short post, since they make some interesting points. However, even if the numbers are off by a factor or two, there's no doubt about the feasibility of recording all US phone calls.

And that's for sound files, which take up quite a lot of space. Text-based information pulled in from emails, Web pages and chat logs could be stored more compactly. That would make the routine recording of vast swathes of what those in the US -- and outside it -- do online not just plausible, but so cheap in comparison to the NSA's presumably large budget, that the latter might feel it would be crazy not to do so as a matter of course.

FBI agents always interview in pairs. One agent asks the questions, while the other writes up what is called a “form 302 report” based on his notes. The 302 report, which the interviewee does not normally see, becomes the official record of the exchange; any interviewee who contests its accuracy risks prosecution for lying to a federal official, a felony. And here is the key problem that throws the accuracy of all such statements and reports into doubt: FBI agents almost never electronically record their interrogations; to do so would be against written policy.

Without a recording to compare the transcript to, we are expected to trust the FBI's version of the interrogation. If we can't trust it, we are left to draw one of the following conclusions.

1. The transcript is completely false. 2. The transcript is heavily editorialized. 3. The transcript interprets certain statements, but is otherwise accurate. 4. The transcript is completely accurate.

Of all of these choices, number 4 seem least likely. In fact, one wonders why the FBI bothers interviewing anyone when it could simply put two agents in a room and allow them to bang out a confession on behalf of the accused.

If a suspect claims the transcription is erroneous, it's his word against theirs. His words, of course, disappeared into the ether as soon as they were spoken. The FBI's version lives on, printed on paper.

We don't need to ask "why" this is a problem. There are rhetorical questions and then there are stupid questions, the sort helpful teachers and guidance counselors continue to pretend don't exist. A better question is, "Why hasn't this been changed?" Silverglate notes this policy is an updated version of a 1990's policy, crafted in 2006, long long long long after recording devices were ubiquitous. The excuse that this policy was "logistically necessary" because of technological limitations was ridiculous in 1990, much less 16 years later.

This is a problem. More specifically, this is Robel Phillipos' problem.

Phillipos is a 19-year-old Cambridge resident, former UMass Dartmouth student, and friend of alleged Marathon bomber Dzhokhar Tsarnaev. He faces charges of making materially false statements during a series of interviews with FBI agents. If convicted, he could get up to eight years in federal prison and a $250,000 fine.

Q: We found files on your computer showing that you went to a website with instructions on how to make a bomb, so we know you did it. When did you first go to the bomb website?

A: I surf the web constantly and go through, like, a million pages. I have no idea what pages I searched or when. How could I possibly know?

Notated in 302: D cannot recall when he first went to bomb website. Went "constantly."

Slick, isn't it? And when someone points out a misquote, the accusation is turned on them just as easily. "Are you lying now or were you lying earlier?"

This is nasty business but it gets even nastier. Beyond the hilarious claim that tech simply hasn't advanced enough since 1990 to allow reliable voice recording, there's a much darker rationale guiding this ridiculous (and dangerous) policy.

The more honest — and more terrifying — justification for non-recording given in the memo reads as follows: “. . . perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants. Initial resistance may be interpreted as involuntariness and misleading a defendant as to the quality of the evidence against him may appear to be unfair deceit.” Translated from bureaucratese: When viewed in the light of day, recorded witness statements could appear to a reasonable jury of laypersons to have been coercively or misleadingly obtained.

Sometimes the "reasonable jury" would be right -- the statement has been "coercively or misleadingly obtained." Other times, it may not be as clear-cut. But in a day and age where recording interviews and interrogations is the expectation, the FBI continues to play by its own (convenient) rules. And if the person being interrogated doesn't like it, he can expect additional charges to brought. This puts the alleged criminal in the unenviable position of having "anything he says" twisted, rewritten and heavily paraphrased before being used against him.

Silverglate cautions to withhold judgement on Phillipos until all the facts are in. But as long as the FBI continues to use this "recording" technique, don't grant its statements any credibility. They have none.

Caller: First off, I just want to let you know that I'm recording the call for quality assurance...

Customer Service Rep: Unfortunately, I'm actually not authorizing you to do so, sir.

Caller: You're not authorized to do what?

Customer Service Rep: I'm not authorizing the recording, sir.

Caller: Oh, well you guys are recording the phone call on your end. Why can't I record it on my end?

Customer Service Rep: (long pause) Because it's the company sir.

Later on, the CSR admits that, yes, TWC is recording the call, and the caller requests the recording (guess how that goes?). The CSR continues to insist he's uncomfortable being recorded and is not giving any consent, so the caller more or less says the same thing and asks the CSR to turn off the recording on their end. And so it goes.

As a random aside, I'll just bring up the idiocy of places (including my home state of California) that have two party consent recording laws. If you are a party to the call, you should be able to record it without getting the consent of all participants.